Category Archives: Environment

It’s Time to Understand What “Land Back” Really Means and What Needs to Be Done to Get There

Fellows Falls, one of the streams that feed into Onondaga Creek. (Courtesy of Sid Hill)

An article in The Nation, November 18, 2022,  “It’s Time to Give Indigenous Land Back,” starts out strong, but misunderstands the crucial legal issue. 

The strong start is a clear statement that the root of the land issue is a bizarre doctrine by which the US claims to own Indigenous lands:

“A genocidal campaign of conquest—fueled and justified by the Doctrine of Discovery that declared all land not occupied by Christians as terra nullius (nobody’s land)—dispossessed millions of Indigenous peoples from their homelands in the name of the United States’ policy of western expansion and Manifest Destiny.”

The confusion arises when the authors try to interpret US Supreme Court cases about jurisdiction in what US law calls “Indian country”. First, the interpretation misstates what the cases say; second, it gives the impression that “land back” can somehow happen within existing US law, if only the Supreme Court would be friendly. Let’s unpack this.

  1. The article, referring to the June 2022 Supreme Court decision in Oklahoma v. Castro-Huerta, says:

“Ignoring all precedent, Justice Brett Kavanaugh wrote that states can ignore tribal sovereignty in handling criminal cases of Indigenous citizens on tribal lands.”

In fact, the decision in Oklahoma v. Castro-Huerta did not say the state can prosecute criminal cases against Indigenous defendants. The court said the state has concurrent jurisdiction with the federal government over crimes committed by “non-Indians”; and it expressly side-stepped the question of jurisdiction over Indigenous defendants: 

“…Today’s decision recognizes that the Federal Government and the State have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country.9 [emphasis added]

9 “The dissent characterizes the Court’s opinion in several ways that are not accurate. For example, the dissent suggests that States may not exercise jurisdiction over crimes committed by Indians against non-Indians in Indian country—the reverse of the scenario in this case. To reiterate, we do not take a position on that question.”

Oklahoma v. Castro-Huerta, 213 L. Ed. 2d 847, 142 S. Ct. 2486, 2504 (2022) <https://supreme.justia.com/cases/federal/us/597/21-429/ >

2.  The article then says, referring to the July 2020 Supreme Court decision in McGirt v. Oklahoma:

“In the US Supreme Court, there were encouraging signs in sovereign rights cases involving …the rights to criminal jurisdiction on their own land for the Muscogee (Creek) Nation in Oklahoma.”

But the decision in McGirt v. Oklahoma did not say the Muscogee (Creek) Nation has criminal jurisdiction in the case. The court said:

“McGirt’s appeal rests on the federal Major Crimes Act (MCA)…[which] subject[ed] Indians to federal trials for crimes committed on tribal lands….”

“The MCA applies to Oklahoma according to its usual terms: Only the federal government, not the State, may prosecute Indians for major crimes committed in Indian country.”

“When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creek to try their own members. But, in return, Congress allowed only the federal government, not the States, to try tribal members for major crimes. All our decision today does is vindicate that replacement promise.” [emphases added]

McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452, 2459, 2478, 2480 (2020) < https://supreme.justia.com/cases/federal/us/591/18-9526/ >

In short, both cases—the supposedly “bad” one and the supposedly “good” one—were about competing state and federal jurisdictions. Indigenous jurisdiction was set aside or ignored. As I said above, the authors misstate the decisions. 

More significant, I think, is that the misstatement of McGirt implies that there is space within US law to support Indigenous jurisdiction—space to get beyond the bizarre doctrine of Christian discovery. 

In fact, the McGirt decision explicitly upheld US domination of Indigenous peoples, saying:

“This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” 

The decision quoted from the 1903 case of Lone Wolf v. Hitchcock, which used the Christian discovery claim of land ownership to define US “plenary power” over Indigenous peoples:

The right which the Indians held was only that of occupancy. The fee [title] was in the United States… Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning…” [emphasis added]

Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S. Ct. 216, 221, 47 L. Ed. 299 (1903)
https://supreme.justia.com/cases/federal/us/187/553/

The truth of the matter is that US law has never acknowledged the independent land ownership of Indigenous nations and peoples. Both Castro-Huerta and McGirt are based on the Christian discovery claim of US ownership of Indigenous lands. As McGirtconcluded:

“Congress remains free to [make decisions] about the lands in question at any time. It has no shortage of tools at its disposal.”

Misunderstanding law is not unusual, especially in popular journalism. The problem is acute, however, when the issues involve Indigenous rights, and the writer is supportive of those rights. The writer’s desire to find a sliver of hope in the thicket of US federal anti-Indian law provokes misreading of court decisions that in fact do not support Indigenous rights. The result is a failure of analysis and a fogging of readers’ understanding. 

The major theme of the article in The Nation is “land back”—a movement to restore some type of Indigenous peoples’ control over their ancestral lands. The writers are clear that the nature of that control has been only vaguely defined; they say:

“There is ambiguity on the side of the United States and state governments over whether the land returned to Indigenous nations becomes sovereign or simply self-ruled, which would imply the grant of autonomy could be withdrawn by the entity that granted it.”

This ambiguity is shared by many proponents of “land back” because they do not understand the root legal issue—the US claim of land title. This is a widespread misconception. 

The key point to understand about “land back” is that true restoration of Indigenous ownership goes beyond a notion of “stewardship” under the US property law system. The issue is not “giving land back,” but decolonizing the land. As Jake Edwards (Onondaga) said, the land never went anywhere; it is still here, as are many Indigenous peoples who are rightful owners of the land. “Land back” means nothing if “Christian discovery” is still valid property law.

As I explain in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022), the doctrine of “Christian discovery” underpins the entire edifice of US laws regarding Indigenous land rights. It is so basic to US law that even supposedly positive decisions, like McGirt, rely on it! 

“Land Back” will achieve real success only when the depths of land rights legal issues are fully understood. Lack of clarity, especially if it is coupled with wishful thinking about Supreme Court and other decisions, makes for a lot of hoopla, but it fails to take us further along the path to Indigenous sovereignty in an international framework.  

“INDIGENOUS PERSPECTIVES” PODCAST: Interview with Peter d’Errico about his new book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples *

“Indian Law Turf Wars: Contesting Native Lands and History” : “Indigenous Perspectives” Monthly Broadcast on HealthyLife.Net, # 23– October 27, 2022. **

FOR AUDIO PODCAST: http://www.ecologia.org/news/23.IndianLawTurfWars.mp3 (58 min)

PDF TRANSCRIPT : “23.IndianLawTurfWars” – available from: https://www.researchgate.net/publication/364949987_23IndianLawTurfWars [accessed Nov 03 2022].

Image credit: Emma Cassidy/Survival Media Agency https://brewminate.com/wp-content/uploads/2018/06/062318-03-Native-American.jpg Creative Commons license.

* Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples, by Peter d’Errico. Praeger, 2022. https://www.abc-clio.com/products/a6462c/

** This a part of ECOLOGIA‘s Native American and Indigenous Paths to Environmental Resilience program and one of several podcasts and print transcripts focused on the challenges to and emerging opportunities for indigenous people to take control of environmental affairs on their own lands and on contested lands.

Old Praise for Ursula LeGuin

In August 2019, Siobhan Leddy wrote a thoughtful little essay, “We should all be reading more Ursula Le Guin.” She said, “Her novels imagine other worlds, but her theory of fiction can help us better live in this one.” Here’s a quote:

“The Carrier Bag Theory of Fiction,” an essay Le Guin wrote in 1986, disputes the idea that the spear was the earliest human tool, proposing that it was actually the receptacle. Questioning the spear’s phallic, murderous logic, instead Le Guin tells the story of the carrier bag, the sling, the shell, or the gourd. In this empty vessel, early humans could carry more than can be held in the hand and, therefore, gather food for later. Anyone who consistently forgets to bring their tote bag to the supermarket knows how significant this is. And besides, Le Guin writes, the idea that the spear came before the vessel doesn’t even make sense. “Sixty-five to eighty percent of what human beings ate in those regions in Paleolithic, Neolithic, and prehistoric times was gathered; only in the extreme Arctic was meat the staple food.” Not only is the carrier bag theory plausible, it also does meaningful ideological work — shifting the way we look at humanity’s foundations from a narrative of domination to one of gathering, holding, and sharing.


Yes, LeGuin is an important writer! I’ve read a lot of her books and in every one found a deep understanding of life as well as a good story that teaches lessons. She seamlessly weaves anthropology and science fiction into perspectives that shed light on history, politics, economics, enlivening those staid and sometimes pompous disciplines.

But let me pick a few nits with Leddy. Well, not exactly nits, because I think they are of some significance to understanding LeGuin and her relevance to Leddy’s project.

  • She uses that terrible word ’stakeholder’ to refer to members of a community:

While, in reality, most meaningful social change is the result of collective action, we aren’t very good at recounting such a diffusely distributed account. The meetings, the fundraising, the careful and drawn-out negotiations — they’re so boring! Who wants to watch a movie about a four-hour meeting between community stakeholders?

No wonder she says it’s boring: “Stakeholder” washes out the juice and truth of “collective action”. The OED ties ’stakeholder’ to money, finance, and business: “A person, company, etc., with a concern or (esp. financial) interest in ensuring the success of an organization, business, system, etc.”; “An independent person or organization with whom money is deposited, esp. when a number of people make a bet or other financial transaction.” These are not the dynamics of a community.

See Vine Deloria, God is Red, describing American towns: “Very few political subdivisions are in fact communities. They are rather transitory locations for the temporary existence of wage earners.”⁠ ’Stakeholders’ appropriately describes residents in such places, but not in the communities imagined by LeGuin. 

  • Leddy gets the meaning of community here:

 The carrier bag gatherer, meanwhile, is no lone genius (genius being its own kind of heroism, after all), but rather someone rooted in a shared existence.

  • Leddy gets some other things spot on — ’nature’ is not our adversary (even though many natural forces challenge us); ‘domination’ is self-defeating:

We will not “beat” climate change, nor is “nature” our adversary. If the planet could be considered a container for all life, in which everything — plants, animals, humans — are all held together, then to attempt domination becomes a self-defeating act. By letting ourselves “become part of the killer story,” writes Le Guin, “we may get finished along with it.” All of which is to say: we have to abandon the old story.

But as for ‘abandoning the old story,’ I think people will only be able to do that when they see that the ‘killer story’ has abandoned them, turned on them, come to its logical conclusion. The killer story includes the reduction of ‘community’ to ‘stake-holding’; notice the examples from the OED, where the dominator actors promote ’stake holding’ as a ‘new’ story:  

stakeholder economy n. originally British Politics an economy regarded or conceived of as giving all members of society a stake in its success.
1994    W. Hutton in  Guardian 31 Oct. 10/5   Instead of the winner-take-all economy and polity, the aim should be a stakeholder economy and polity in which all have an interest.
1996    Daily Tel. 8 Jan. 4/1   Tony Blair will today begin to map out the main themes of Labour’s campaign pitch for the next general election. He promises to develop a ‘stakeholder economy’ in which everyone can participate.
2003    New Straits Times (Malaysia) (Nexis) 13 Mar. 12   This will encourage more participation and, consequently, move the country closer to a stakeholder economy.

P.S. You can read “The Carrier Bag Theory of Fiction” courtesy of The Anarchist Library, at https://theanarchistlibrary.org/library/ursula-k-le-guin-the-carrier-bag-theory-of-fiction.muse

BOOK PUBLISHED: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples

Book Cover: Federal Anti-Indian Law
CLICK BOOK COVER IMAGE FOR FURTHER INFORMATION

September 27, 2022, Praeger, ABC-CLIO

Hardcover: 978-1-4408-7921-0
eBook Available: 978-1-4408-7922-7

Publisher’s Description

In 2020, in McGirt v. Oklahoma Justice Neil Gorsuch said Congress has “authority to breach its own promises and treaties” with Native nations based on “Christian discovery” precedents.

Telling the crucial and under-studied story of the U.S. legal doctrines that underpin the dispossession and domination of Indigenous peoples, this book intends to enhance global Indigenous movements for self-determination.

In this wide-ranging historical study of federal Indian law—the field of U.S. law related to Native peoples—attorney and educator Peter P. d’Errico argues that the U.S. government’s assertion of absolute prerogative and unlimited authority over Native peoples and their lands is actually a suspension of law.

Combining a deep theoretical analysis of the law with a historical examination of its roots in Christian civilization, d’Errico presents a close reading of foundational legal cases and raises the possibility of revoking the doctrine of domination. The book’s larger context is the increasing frequency of Indigenous conflicts with nation-states around the world as ecological crises caused by industrial extraction impinge drastically on Indigenous peoples’ existences. D’Errico’s goal is to rethink the role of law in the global order—to imagine an Indigenous nomos of the earth, an order arising from peoples and places rather than the existing hegemony of states.

Features:

  • Combines a deep theoretical analysis of the law with historical perspective
  • Argues that federal Indian law is an exception from regular legal processes
  • Offers a global Indigenous perspective on human civilization
  • Provides analysis from an attorney and educator with decades of experience in federal Indian law

Reviews

Federal Anti-Indian Law is a gut-wrenching analysis. My whole career grappled with the contradictions d’Errico illuminates and dissects. One finally comes to understand Louise Erdrich’s rotten noodles metaphor for U.S. laws that dominate Indigenous Peoples.” —Sarah W. Barlow, Retired Attorney, Albuquerque, NM

“In this ground-breaking work, d’Errico launches a frontal attack on the whole field of American law pertaining to Indigenous Peoples. He exposes not only the racism, but also the Christian discovery roots of federal domination of the Indian nations, and then goes beyond criticism, offering a way out of this unacceptable situation. This book is a must-read for anyone wanting to understand American history and the questionable basis for U.S. sovereignty.” —Kent McNeil, Distinguished Research Professor (Emeritus), Osgoode Hall Law School, York University, Toronto, Canada

“This book covers an enormous area of historical and modern-day federal Indian law, which the author calls ANTI-Indian law. Like an iconoclast in the truest sense of the word, d’Errico attacks the colonial foundations of Indian law and challenges professors, historians, Indian nations’ leaders, and tribal attorneys to stop relying on Supreme Court case law that is built on disastrous premises and instead to resist and reverse these foundational principles.”—Robert James Miller, Professor, Sandra Day O’Connor College of Law at Arizona State University

Federal Anti-Indian Law provides a significant contribution in establishing a proper context in which to engage in the exercise of identity. Governmental representation at all levels, academia at all levels, and anyone who ‘cares’ about the Original Free Nations and Peoples of this land should have a better understanding of who these nations and peoples are and where they come from. ‘Where are we all going?’ is the real question. This book represents a contribution of the type of ‘truthful’ and ‘respectful’ communication that is absolutely necessary to know where the future will collectively lead us.” —JoDe Goudy (Yakama Nation), Owner, Redthought.org

Federal Anti-Indian Law is a paradigm-shattering work. Professor d’Errico has spent decades teaching, studying, and reflecting upon the system of ideas the U.S. government has used to establish its claim of a right of domination over the original nations and peoples of the continent.” —Steven T. Newcomb, Director, Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery 

“Many Americans have never heard of the Christian Doctrine of Discovery or understood how the federal government retains nearly unlimited authority over Native lands and nations. Professor d’Errico explains how, even today, Indigenous Peoples in the United States live under an ‘exception’ to U.S. law—an eye-opening revelation for many readers. Federal Anti-Indian Law is an accessible read that reveals the interplay of law with history and should not be limited to legal classrooms—it’s an important and enlightening book for all people, Indigenous and non-Indigenous alike.”—Robert Maxim II (Mashpee Wampanoag), Senior Research Associate, Brookings Institution 

“Covering nearly every influential legislative act, legal decision, and federal policy, Peter d’Errico does not take a ‘bird’s eye view’ of U.S. Indian law, but brings us down to the ground, revealing a vast, long, and lucid view of the quagmire of ‘anti-Indian law,’ a system designed to dispossess and dominate, which rests on the ancient foundation of the Christian doctrine of discovery. Under his acute analysis, and with engaged storytelling, the shaky foundation beneath the system gives way, opening more sustainable paths to a just future.”—Lisa Brooks, Henry S.Poler ’59 Presidential Teaching Professor of English and American Studies, Amherst College; Author of Our Beloved Kin: A New History of King Philip’s War

About the Author

Peter d’Errico, JD (LLB) is professor emeritus of legal studies at the University of Massachusetts at Amherst, where he has taught for more than 30 years. He is a member of the New Mexico Bar and was staff attorney at Dinébe’iiná Náhiiłna be Agha’diit’ahii (Navajo Legal Services). He has litigated Indigenous land and fishing rights as well as Native spiritual freedom rights in prisons, and he consulted of-counsel in other Native cases. He is a regular presenter of online seminars about Indigenous peoples’ legal issues at Redthought.org and elsewhere, including National Endowment for the Humanities Summer Institutes for Teachers on “Teaching Native American Histories.”

In Praise of Liberty and Mutual Aid: A short review of The Dawn of Everything: A New History of Humanity, by David Graeber and David Wengrow (Farrar, Strauss, and Giroux, 2021).

In Praise of Liberty and Mutual Aid: A short review of The Dawn of Everything: A New History of Humanity, by David Graeber and David Wengrow (Farrar, Strauss, and Giroux, 2021).

By Peter d’Errico *

The Dawn of Everything, a “new history of humanity” by David Graeber and David Wengrow, an anthropology and archaeology research team, joins a burgeoning global awareness that life on Earth is in social and ecological crisis and that the crisis is tied to the system of industrial state corporate society. The book’s contribution is to help us understand why we are having a difficult time figuring a way out of the mess. The reason, they say, is that our thinking is trapped by belief in the story that modern corporate state society is the end state of human evolution, the inevitable result of “progress” from “barbarism” to “civilization.” The obstacle to thinking of alternatives to the current organization of society is a belief that there is no alternative to this organization. 

This belief dominates received opinion. Francis Fukuyama, in the heady days of US self-congratulation after the collapse of the Soviet Union, said we are at the “end of history.” Recently, even as ecological data confirmed that the current social system is problematic, Jared Diamond persists in promoting the view that it is “unrealistic,” because of “biogeographical” factors, to expect to live without “kings, presidents, and bureaucrats” except in “some tiny band or tribe.” He insists on this limiting view even though the event he presumes caused the dilemma, the so-called “agricultural revolution,” is “the worst mistake in the history of the human race.” If we believe received wisdom, we can only conclude there is no way out of a world out of balance.

Speaking of Fukuyama and Diamond, Graeber and Wengrow say, “The truly remarkable thing is that, despite the self-assured tone, such pronouncements are not actually based on any kind of scientific evidence…. There is simply no reason to believe that small-scale groups are especially likely to be egalitarian—or, conversely, that large ones must necessarily have kings, presidents or even bureaucracies.” Notions of a “necessary” human evolution from small-scale egalitarian to large-scale hierarchical societies “are just so many prejudices dressed up as facts, or…laws of history.” 

The Dawn of Everything is a riposte to received wisdom. But The Dawn is not a polemic. It is a detailed survey of scientific data about ancient human civilizations from archaeological and anthropological investigations that have only recently become possible (archaeobotany, DNA analysis, “statistical frequencies of health indicators from ancient burials,” etc.). The conclusions they draw from this data are directed against all stories of irreversible historical inevitability, those derived from Rousseau’s notion of an original human egalitarianism ruined by the “agricultural revolution” and those tied to Hobbes’s proposition of an original “nasty, brutish” humanity rescued by “sovereign government.”  The Dawn rejects both versions on the grounds that they “simply aren’t true; have dire political implications; [and] make the past needlessly dull.” 

These three analytical categories shape the authors’ overall approach and tone of the book: First, occupying the greatest portion of the book, is the scientific data; second are discussions of political implications of various readings of history; third are speculations aimed to enliven our “sense of human possibility.” The authors suggest that our “future now hinges on our capacity to create something different” and they ask a question to motivate readers through the nearly 700 pages of text: “What if, instead of …[repeating the conventional story], we ask how we came to be trapped in such tight conceptual shackles that we can no longer even imagine the possibility of reinventing ourselves?” 

The book’s opening salvo is, “Most people rarely think about the broad sweep of human history anyway.” The authors then declare their intention to go where most people don’t go, to take up “the sort of grand dialogue about human history that was once quite common.” In fact, as the authors quickly make clear, lots of people do talk about human history, “from industrial psychologists to revolutionary theorists…[to] popular writers.” The problem, they say, is that the talk generally shares the same “foundational story… the prevalent ‘big picture’ of history [that]…has almost nothing to do with the facts.” They embark on the task of backing up their assertion by exposing the ethnographic and historical assumptions incorporated into the dominant story of human evolution to state-of-the-art scientific work. The result, they promise, will not simply be a catalog of new data, but “a conceptual shift” in thinking about the “notion of social evolution,” a shift “retracing…the idea that human societies could be arranged according to stages of development…hunter-gatherers, farmers, urban-industrial society, and so on.”

Ursula Le Guin [“Books Aren’t Just Commodities” (National Book Awards Speech, 2014)] also reminded us of human possibility and the power of conceptual shifts to motivate historical change: “We live in capitalism, its power seems inescapable – but then, so did the divine right of kings. Any human power can be resisted and changed by human beings. Resistance and change often begin in art. Very often in our art, the art of words.” 

I approached The Dawn of Everything with a view to bolster my own work studying Indigenous peoples’ legal issues, a field I’ve been working for more than 50 years. From that perspective, rooted in scholarly study and personal experience, I long ago realized the falsity of the Anglo-European proclamation of civilizational superiority. I wasn’t looking for “proof” that Indigenous peoples of the past built sophisticated societies and grappled with complicated social problems. I understood that Indigenous perspectives about human society today offer valuable alternatives to the political economy of industrial extraction and “wealth production.” I knew Rousseau’s “noble savage” and Hobbes’s “brute” were efforts to bracket and come to terms with evidence of alternative modes of human existence from the “New World.” I had already done what Graeber and Wengrow decide to do: “To move away from European thinkers like Rousseau entirely and instead consider perspectives that derive from those indigenous thinkers who ultimately inspired them.” 

The authors’ core thesis is that the story of a “necessary” human evolution from “barbaric tribes” to “civilized states” was produced by European writers to rationalize the great differences between their societies and the societies “discovered” in the “New World.” The Dawn refers to this process as Europeans responding to the “Indigenous critique,” ideas put forward by Indigenous people criticizing European Christian civilization. The most significant reports of the Indigenous critique were provided by Jesuits and other missionaries in the Northeast Woodlands region: That Native peoples are very generous with one another, that there’s no one who goes hungry within their communities unless everyone is hungry, that there are no beggars within their communities and no jails. The reports also noted that Indigenous chiefs only have authority in as far as they’re eloquent, and that no one will do anything when ordered to do so unless they find it agreeable. Scandalized missionaries reported that Indigenous women had full control over their bodies; colonial authorities noted that women often took part in Indigenous governance. 

Public figures in Europe directly encountered the Indigenous critique from Natives visiting Paris, London, and other cities, who saw beggars in the streets and attributed this to a lack of charity on the part of the Europeans, condemning them for it. The contrasts between European hierarchy and domination, selfishness and greed, and the way of life of Indigenous peoples had a profound impact in Western thinking and was one of the major streams of thought flowing into the Enlightenment. 

In a nutshell, The Dawn of Everything says the theory of human evolution from “barbarism to civilization” was developed specifically to defend European feudal societies against the overall Indigenous critique. Europeans were shaken by the unmistakable openness and fluidity of Northeast Woodlands Indigenous societies and the paradoxical (to Europeans) combination of Indigenous insistence on individual autonomy with an equally strong insistence on group solidarity. The central theme of the European arguments was that individual autonomy and self-determined group cohesion were viable only among “primitive” peoples and had to be abandoned as humans “evolved.” Followers of Rousseau and Hobbes alike argued that “advanced civilization” was “necessary” in human “development” and that the life of “tribes” was doomed by this necessary “progress.” 

The Dawn notes that Europeans did not perceive such dangerous ideas from the Aztec and Inca, whose urban civilizations and empires rivalled Europe. Neither did they bother to figure out how their theory of “human progress” could explain such “advanced” Indigenous societies. The only explanation they needed to combat such peoples was the “heathen and infidel” argument that, with religious notes, also composed a hierarchical scale putting European Christendom at the top. 

The eventual outgrowth of European defense against the Indigenous critique produced a combination of “human evolution” and the doctrine of a “right of Christian discovery,” a combination adopted into US law in 1823 by the Supreme Court decision in Johnson v. McIntosh. Justice Joseph Story [Commentaries on the Constitution of the United States (1833)] characterized that decision as “…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. … The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.” (Not surprisingly, “Christian discovery” originated as a Portuguese “right” to the African slave trade in 1452.)

That doctrine and the “evolution” story remain dominant at the legal foundation of contemporary US claims of inevitable supremacy. Recent examples include City of Sherrill v. Oneida Nation (2005), where Justice Ruth Bader Ginsburg said: “Under the ‘doctrine of discovery,’ …fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States….” [she denied Oneida land ownership]; and McGirt v. Oklahoma (2020), where Justice Neil Gorsuch said Congress has “authority to breach its own promises and treaties” with Native nations, based on “Christian discovery” precedents [he said Congress had not done this yet with the Creek Nation, but “remains free to …[do so] at any time”].

Indigenous critique also persists in the 21st century, including: Idle No More (founded 2012)— Led by women, with a call for “refounded nation-to-nation relations… a movement for Indigenous rights and the protection of land, water, and sky”; Independent Lakota Nation Declaration on Lakota Nationhood and the Dakota Access Pipeline Conflict (2016)— “We do not recognize United States or state permits to gather, pray, or otherwise demonstrate our cultural, social, and political institutions on our own aboriginal lands”; Yakama Nation amicus in Washington State v. Cougar Den (2018)—”The Court should expressly repudiate the doctrine [of Christian discovery] and instead rely on the Yakama Treaty”; Manoomin, et.al., v. Minnesota Department of Natural Resources, et.al. (Case No. GC21-0428 in White Earth Tribal Court, 2021)—”an action for declaratory and injunctive relief to declare Manoomin, or wild rice, within all the Chippewa ceded territories is protected and possesses inherent rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation.” 

In short, the 16th century dynamic cited at the core of The Dawn remains active in the 21st century, providing global humanity with the same opportunity and challenge that faced Christian European colonial powers: to shape human societies harmoniously and sustainably. 

Even as apparently “simple” Indigenous societies befuddled and disturbed European intellectuals, they attracted on-the-ground colonists. James Axtell [The Invasion within: The Contest of Cultures in Colonial North America (1985)] summarizes what colonists said about their experiences living among Native peoples: “They found Indian life to express a strong sense of community, abundant love, and uncommon integrity…[as well as] social equality, mobility, adventure…the most perfect freedom, … ease of living, the absence of…corroding solicitudes….” 

The record of contacts between colonial invaders and Native peoples illustrates what Axtell and The Dawn say: The Puritans, for example, were embarrassed by the fact so many of their kind fled to the “Indians,” while so few Natives wanted to adopt the Puritan world. Sebastian Junger [Tribe: On Homecoming and Belonging (2016)], like Graeber and Wengrow, quotes Benjamin Franklin bemoaning that white captives “liberated from the Indians” and returned to “stay among the English…take the first good opportunity of escaping again” to their Native communities. On the other hand, Franklin said, “When an Indian child has been brought up among us…if he goes to see his relations…there is no persuading him ever to return.” Junger recounted that when Colonel Henri Bouquet, a Swiss mercenary under British General Jeffrey Amherst, attacked Odawa Chief Pontiac’s forces (after delivering smallpox-infected blankets to Fort Pitt [see d’Errico, “Amherst and Smallpox” http://people.umass.edu/derrico/amherst/lord_jeff.html (2001, 2020)]) and demanded return of white captives, Native families had to bind those people and forcibly bring them in. Many later escaped and returned to their Native communities. 

Junger, echoing Axtell, says colonials gravitated to the “intensely communal nature” of Indian life: Not only the “rough frontiersmen,” as he puts it, but also “the sons and daughters of Europe” were drawn to the natural sociability of Indian life, even as against “the material benefits of Western civilization.” He quotes French immigrant writer Hector Saint John de Crèvecoeur, saying, “Thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become European. There must be in their social bond something singularly captivating and far superior to anything to be boasted of among us.” 

Graeber and Wengrow launch their book against this background: “Revisiting [the encounters of Indigenous peoples and Europeans]…has startling implications for how we make sense of the past today, including the origins of farming, property, cities, democracy, slavery and civilization itself.” They suggest that “The ultimate question of human history…is not our equal access to material resources…, much though these things are obviously important, but our equal capacity to contribute to decisions about how to live together.” Contemporary diatribes against “tribal politics” in the US have forgotten this long-existing perspective that “tribal” life is more humane than state civilization. 

European efforts to counter the Indigenous critique and neutralize its threat, combining the “human evolution” story and religious theory, ultimately merged into a field of  “natural law,” a domain of thought explicitly triggered by debates about the moral and legal implications of European Christianity’s “discovery” of the “New World.” The core debate focused on the question: What “rights” do humans have even if they exist in a “state of nature” ignorant of “revealed religion”? The answer, generally, was that they have some rights, but that these are inferior to the rights of civilized (read, European Christian) humans. 

The argument in Dawn only touches on the development of “international law” from these natural law origins. That history is told by Carl Schmitt [The Nomos of the Earth in the International Law of the Jus Publicum Europaeum(1950; trans. 2003)] and will be helpful to recap here: Schmitt says, “The traditional Eurocentric order of international law…arose from a legendary and unforeseen discovery of a new world…. The Age of Discovery, when the earth first was encompassed and measured by the global consciousness of European peoples…resulted in …a Eurocentric international law: the jus publicum Europaeum. …Its nomos was determined by the following divisions. The soil of non-Christian, heathen peoples was Christian missionary territory; it could be allocated by papal order to a Christian prince for a Christian mission. … European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth. The term ‘European’ meant the normal status that set the standard for the non-European part of the earth. Civilization was synonymous with European civilization. … The first question in international law was whether the lands of non-Christian, non-European peoples…were at such a low stage of civilization that they could become objects of organization by peoples at a higher stage.”

Schmitt has this to say when he focuses specifically on the claim of “a right of Christian discovery”: “The meaning of the legal title ‘discovery’ lay in an appeal to the historically higher position of the discoverer vis-à-vis the discovered. This position differed with respect to American Indians, and other non-Christian peoples, such as Arabs, Turks, and Jews…. From the standpoint of the discovered, discovery as such was never legal. Neither Columbus nor any other discoverer appeared with an entry visa issued by the discovered princes.”

In the same vein that Graeber and Wengrow decry the absence of questioning of all this, Schmitt says, “Jurists …have in view…only the system of a specific state legality. They are content to reject as ‘unjuridical’ the question of what processes established this order.”

We might expect that The Dawn’s thesis will be rejected by many commentators. After all, contemporary edifices of power, whether in academia, media, corporations, or statehouses, is dependent on public belief in the inevitability of the edifice; more, a fear that the absence of the edifice would mean a loss of “quality of life.” Nevertheless, a quick rejection is not viable. Proper evaluation of the thesis requires engagement with nearly 700 pages of information from the most recent scientific work related to human history. I will point readers to the book itself for that task and close my review with a comment about anarchy, which some may assume must be the underlying philosophy of The Dawn, especially because Graeber was known as an anarchist. 

The dominant story of “human evolution,” to which mass society and professional commentators seem equally wed, has no room for anarchism. Liberty and mutual aid are either gone forever or limited to their bureaucratic manifestations in the “welfare state.” Anything else is said to be wishful thinking, hopelessly naïve, even “anarchy.” 

If it be anarchism to challenge the received (and celebrated) story of inevitable statist domination of human life, so be it. On the other hand, anarchism is not the same as anarchy. Specifically, anarchism is “a political theory advocating the abolition of hierarchical government and the organization of society on a voluntary, cooperative basis without recourse to force or compulsion”; anarchy is “a state of disorder due to absence or nonrecognition of authority or other controlling systems.” Anarchism not only comprehends social order but celebrates such order that arises from and is compatible with liberty and mutual aid. One need not be a Marxist to embrace these values; Friedrich Hayek did also. To explore the significance of that coincidence requires more than I can do here. 

Suffice it to say, quoting Carl Schmitt again, “Anarchy is not the worst scenario. Anarchy and law are not mutually exclusive. The right of resistance and self-defense can be good law, whereas a series of statutes shattering every notion of resistance and self-defense, or a system of norms and sanctions suppressing anyone who proposes resistance and self-defense can presage a dreadful nihilistic destruction of all law.” 

I have long been fond of a remark by Professor Grant Gilmore [The Ages of American Law (1977)], who, to my loss, left Yale Law School as I was entering, and I close with it: 

“Law reflects, but in no sense determines the moral worth of a society…. The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb…. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.” 

McGirt, Oklahoma, and the EPA – Federal anti-Indian Law in Action

So much hoopla surrounded the McGirt v. Oklahoma decision that few people could see what the case really decided.

The decision said the Creek Nation was “Indian country” as defined in federal law and that Oklahoma had no jurisdiction over crimes committed by Native persons in Creek territory. Lots of people were thrilled to read Justice Gorsuch’s opening line, “On the far end of the Trail of Tears was a promise.”

The temptation was great to think McGirt closed the door on the genocidal era of “Indian Removal.” But McGirt didn’t close that door. In the language of federal Indian law, when it said Creek lands are part of “Indian country” it meant they are subject to the US Major Crimes Act. That was the legal question in the case.

Despite the hoopla about a “landmark decision,” McGirt did not transform federal Indian law. In fact, McGirt upheld the key federal Indian law doctrine of US domination over Native nations and peoples — the doctrine called “congressional plenary power.” It said the Creek Nation existed because Congress had not (yet) “disestablished” it.

As the majority opinion itself pointed out, it was reaffirming the “plenary power” claim of US domination asserted by the Supreme Court “long ago”:

This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. 

The majority and dissent in McGirt were in agreement about this fundamental point of law. They both said the US Congress can do as it wishes with Native nations, peoples, and lands. The only difference between the majority and dissent was whether Congress had or had not “disestablished” the Creek nation. The dissent said yes. The majority said no.

To make the fundamental point clear, the majority said Congress could do the dirty deed whenever it wished:

of course, …Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.

Anyone who reads the decision can see this, even with rose-colored glasses.

We should, therefore, not be surprised that the US Environmental Protection Agency has stepped through the “disestablishment” door left wide open in McGirt. On October 1, 2020, the EPA, at the request of the governor of Oklahoma, granted the state regulatory control over environmental issues in “areas of Indian country described in the state’s request.”

Governor Stitt and EPA Administrator, Andrew Wheeler, had the audacity to flaunt the McGirt decision, knowing that it upheld US domination despite its appealing rhetoric. As Wheeler’s letter put it:

…the impetus for the State’s request was the recent decision of the U.S. Supreme Court in McGirt v. Oklahoma…. EPA understands the State’s reference to McGirt as an explanation of the State’s intent substantially to reestablish the geographic scope of the State’s environmental programs as implemented prior to the Supreme Court’s decision….

Some may call this “realpolitik”; some may call it “playing hardball.” It is both. And yet, how exactly does it work? Didn’t McGirt say Oklahoma didn’t have jurisdiction in “Indian Country”? Aha! Re-read above: McGirt said, “Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.” And what “tools” did the EPA and Oklahoma rely on?

They relied on a tiny provision snuck into an innocuous-sounding law passed in 2005, titled “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.” In typical American political style, the title boils down to the catchy acronym SAFETEA. Who but a true cynic would guess there was a little provision in the Act about environmental regulation that applied only to Oklahoma? It was inserted by Senator James Inhofe of Oklahoma, Chair of the US Senate Committee on Environment and Public Works. The provision was “SECTION 10211. ENVIRONMENTAL PROGRAMS. OKLAHOMA.” Here’s the part the governor and administrator used:

…on request of the State, the Administrator [of the Environmental Protection Agency] shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.

When TYT News reported the EPA had granted Oklahoma the same authority the state had before McGirt, they explained that the EPA “can do this because federal legislation can nullify Supreme Court rulings.” In this case, the legislation was passed 15 years before the ruling, so it’s not quite right to say it “nullified” it. Nonetheless, this is precisely the Achilles heel of McGirt. It was visible to anyone who really read the McGirt decision: “Congress remains free…. It has no shortage of tools….”

The “freedom” of Congress is the unfreedom of Native nations and peoples. The original free existence of Native nations and peoples in their own lands was and is the target of federal Indian law. Federal Indian law, understood to its core — “plenary power” — is federal anti-Indian law, built to seize Native lands. The EPA – Oklahoma deal is only the latest effort.

Casey Camp-Horinek, Environmental Ambassador, Elder, and Hereditary Drumkeeper, Ponca Nation, provided the following statement to TYT:

“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the frontlines and in the international courts, LIFE itself is at stake.”

Casey Camp-Horinek

Life is at stake. And federal anti-Indian law is part of the problem. Despite the fancy rhetoric of “trust relationship” and “government-to-government relationship,” the basic doctrine in federal Indian law is “plenary power.” As the 1903 Lone Wolf v. Hitchcock decision cited by McGirt makes clear, this so-called “plenary power” is an outgrowth of the 1823 federal Indian law property doctrine of “Christian discovery.”

Here’s how Chief Justice John Marshall stated “Christian discovery” in the 1823 case, Johnson v. McIntosh:

John Marshall

The colonists “acquire[d] territory on this continent …[under] the principle [of the] right of discovery [of] countries then unknown to all Christian people….

“[This is] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. [Marshall’s emphasis]

Marshall was emphatic in adopting “Christian discovery” into US law. He said, “The United States…have unequivocally acceded to that great and broad rule….”

Justice Joseph Story, who participated in the Johnson v. McIntosh decision, later put it this way in his Commentaries:

Joseph Story

“…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.

The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”

What more needs to be said? A colonial, racist doctrine of religious supremacy is still at the core of US “federal Indian law.” Native peoples are “merely occupants” not owners in their lands. They have the same legal status as “brute animals.” That is the “law” that still upholds colonizing, extractive industries and governments destroying the world’s ecosystems.

McGirt may have some usefulness to those who will try to block the EPA – Oklahoma deal. The majority said Congress must be “clear” when it “disestablishes” a Native nation. Was the tiny provision hidden in the “Transportation Equity Act” a “clear expression” of the intent of Congress to impose state jurisdiction over Native nations surrounded by Oklahoma? That will be the technical question.

The real question is how much longer America will tolerate a racist religious doctrine as part of its legal system.

Contaminated Water Escaping Nuclear Plant, Japanese Regulator Warns – NYTimes.com

Government officials have said that the water is probably leaking from broken pipes inside the reactor, from a breach in the reactor’s containment vessel or from the inner pressure vessel that houses the nuclear fuel.

via Contaminated Water Escaping Nuclear Plant, Japanese Regulator Warns – NYTimes.com.

Geez, I guess the water must be coming from somewhere…. did they check for a leaky toilet? No, there wouldn’t be plutonium there, unless someone tried to flush it down as the investigators arrived…..

How long can they pretend this is not a meltdown?

but not to worry:

“We’re basically in a brainstorming phase right now,” ….

ADDENDUM 18 May 2011:

Finally, the truth is acknowledged:

Cleanup Schedule Unchanged at Nuclear Power Plant After Release of Meltdown – NYTimes.com

The company now acknowledges that a fuel meltdown occurred at three of the plant’s six reactors in the early hours of the crisis….

As Chico Marx said: “”Well, who you gonna believe, me or your own eyes?”

J. G. Ballard and the Death of Rain (thoughts on the oil volcano in the Gulf)

In 1965, novelist J. G. Ballard published The Drought, an expanded version of his science fiction novel published a year earlier, The Burning World. With these early novels, Ballard was well under way toward achieving the literary distinction of having a genre named for him: “ballardian” — “dystopian modernity, bleak man-made landscapes & the psychological effects of technological, social or environmental developments.”

The story of The Drought is the disappearance of potable water, a consequence of the disappearance of rain. The excerpt quoted below provides a capsule history of the disappearance and an explanation for it: the disruption of the hydrologic cycle caused by a thin “mono-molecular film” on the surface of the oceans. Covered by this film, the oceans no longer provide sufficient evaporation to produce rain on the world’s lands.

The striking thing about Ballard’s dystopian vision is in the details: The ocean film is “a complex of saturated long-chain polymers,” formed from a “brew” of “highly reactive industrial wastes—unwanted petroleum fractions, contaminated catalysts and solvents… mingled with the wastes of atomic power stations and sewage schemes.” Here is not only a vision, but prescience, a glimpse into a world post- British Petroleum’s Deep Horizon well blow-out.

Here is the excerpt [from pp. 33-35, Triad/Panther paperback (1985)]:

The world-wide drought now in its fifth month was the culmination of a series of extended droughts that had taken place with increasing frequency all over the globe during the previous decade. Ten years earlier a critical shortage of world food-stuffs had occurred when the seasonal rainfall expected in a number of important agricultural areas had failed to materialize. One by one, areas as far apart as Saskatchewan and the Loire valley, Kazakhstan and the Madras tea country were turned into arid dust-basins. The following months brought little more than a few inches of rain, and after two years these farmlands were totally devastated. Once their populations had resettled themselves elsewhere, these new deserts were abandoned for good.

The continued appearance of more and more such areas on the map, and the added difficulties of making good the world’s food supplies, led to the first attempts at some form of global weather control. A survey by the U.N. Food and Agriculture Organization showed that everywhere river levels and water tables were falling. The two-and-a-half million square miles drained by the Amazon had shrunk to less than half this area. Scores of its tributaries had dried up completely, and aerial surveys discovered that much of the former rainforest was already dry and petrified. At Khartoum, in lower Egypt, the White Nile was twenty feet below its mean level ten years earlier and lower outlets were bored in the concrete barrage of the dam at Aswan.

Despite world wide attempts at cloud-seeding, the amounts of rainfall continued to diminish. The seeding operations finally ended when it was obvious that not only was there no rain, but there were no c1ouds. At this point attention switched to the ultimate source of rainfall—the ocean surface. It needed only the briefest scientific examination to show that here were the origins of the drought.

Covering the off-shore waters of the world’s oceans, to a distance of about a thousand miles from the coast, was a thin but resilient mono-molecular film formed from a complex of saturated long-chain polymers, generated within the sea from the vast quantities of industrial wastes discharged into the ocean basins during the previous fifty years. This tough, oxygen-permeable membrane lay on the air—water interface and prevented almost all evaporation of surface water into the air space above. Although the structure of these polymers was quickly identified, no means was found of removing them. The saturated linkages produced in the perfect organic bath of the sea were completely non-reactive, and formed an intact seal broken only when the water was violently disturbed. Fleets of trawlers and naval craft equipped with rotating flails began to ply up and down the Atlantic and Pacific coasts of North America, and along the sea-boards of Western Europe, but without any long-term effects. Likewise, the removal of the entire surface water provided only a temporary respite—the film quickly replaced itself by lateral extension from the surrounding surface, recharged by precipitation from the reservoir below.

The mechanism of formation of these polymers remained obscure, but millions of tons of highly reactive industrial wastes—unwanted petroleum fractions, contaminated catalysts and solvents—were still being vented into the sea, where they mingled with the wastes of atomic power stations and sewage schemes. Out of this brew the sea had constructed a skin no thicker than a few atoms, but sufficiently strong to devastate the lands it once irrigated.

This act of retribution by the sea had always impressed Ransom by its simple justice. Cetyl alcohol films, had long been used as a means of preventing evaporation from water reservoirs, and nature had merely extended the principle, applying a fractional tilt, at first imperceptible, to the balance of the elements. As if further to tantalize mankind, the billowing cumulus clouds, burdened like madonnas with cool rain, which still formed over the central ocean surfaces, would sail steadily towards the shorelines but always deposit their cargo into the dry unsaturated air above the sealed offshore waters, never on to the crying land.

There are those who will claim the mantle of science to dismiss Ballard’s vision as only fiction. The federal government itself, in partnership with BP, would have us believe the oil volcano (or “spill”) in the Gulf has been capped with no long-term damage to the ocean. Here’s their report, released on August 4, 2010, by the National Oceanic and Atmospheric Administration and the U.S. Geological Survey:

…. burning, skimming and direct recovery from the wellhead removed one quarter (25%) of the oil released from the wellhead. One quarter (25%) of the total oil naturally evaporated or dissolved, and just less than one quarter (24%) was dispersed (either naturally or as a result of operations) as microscopic droplets into Gulf waters. The residual amount — just over one quarter (26%) — is either on or just below the surface as light sheen and weathered tar balls, has washed ashore or been collected from the shore, or is buried in sand and sediments. Oil in the residual and dispersed categories is in the process of being degraded.

Despite this rosy assessment, the report concludes: “… federal scientists remain extremely concerned about the impact of the spill to the Gulf ecosystem. Fully understanding the impacts of this spill on wildlife, habitats, and natural resources in the Gulf region will take time and continued monitoring and research.”

In Ballard’s story, the “full understanding” took about a decade to acquire.

In a sign that others are more attuned to the dystopic possibilities of the blow-out in the Gulf, the report “set off a war of words … among scientists, Gulf Coast residents and political pundits about what to make of the Deepwater Horizon spill and its aftermath,” according to an article in The New York Times.

Meanwhile, further research by other scientists “confirms the existence of a huge plume of dispersed oil deep in the Gulf of Mexico and suggests that it has not broken down rapidly, raising the possibility that it might pose a threat to wildlife for months or even years.” The dispute about the science is ongoing, and at least one observer understands the potential for fiction in scientific reports: Rep. Ed Markey (D-Mass.), chairman of the House Energy and Commerce Committee’s Energy and Environment subpanel, said during a hearing on the official report, “People want to believe everything is OK, and I think this report and the way it is being discussed is giving many people a false sense of confidence regarding the state of the Gulf.”

Local news reports along the Gulf coast provide additional information contradicting the official report: “a coalition of Gulf community activists, scientists and philanthropists are saying the federal government and BP are misrepresenting the amount of oil left to be cleaned up in the Gulf of Mexico and the safety of eating seafood from the region.”

One long-term Florida resident provides a useful compendium of information on a website wholly devoted to the Gulf oil mess: “What I was seeing in the local and national media barely scratched the surface.”

If you want to take a quick look at the kind of science that is being used to study oil in the oceans — including the variety of assumptions (dare we say “fictions”?) involved — see these documents:

1. The “Ask a Scientist” answer to a nine-year-old student’s question, “Does oil evaporate?“; provided by the Newton Project of the Argonne National Laboratory of the U.S. Department of Energy:

… the molecules in some kinds of liquids, like oil for example, are rather large and well-tangled up and attached to each other. This means that evaporation, if it occurs at all, is very slow.

2. “Evaporation of Oil Spills,” by M. F. Fingas, Emergencies Science Division, Environmental Technology Division, Environment Canada, submitted to Journal of the American Society of Civil Engineers, 1994:

Although the process of oil evaporation is understood, the application of evaporation equations in spill models is sometimes difficult. This relates to the input data required for the equations. There are only 3 relatively well-used schemes currently employed in models. The most commonly used is that of evaporative exposure as proposed by Stiver and Mackay (1984). Difficulties with the implementation of this model are primarily in terms of input data. Model implementation requires a mass transfer coefficient and a vapour pressure for each oil. These are not routinely measured for oil and must be estimated using other techniques. The second most-commonly used method is that of applying oil fraction-cut data. These methods are applied by using the readily-available distillation curves to estimate parameters for the Mackay equations noted above or in a direct technique. The third most common method is to assume a loss rate which is estimated from oil properties and the presumption that the oil moves linearly or logarithmically to that end point.

A blurb from The New Statesman, reviewing Ballard’s The Drought, is quoted on the front cover of the 1985 paperback edition: “powerfully credible, a compulsive nightmare.”

Indeed.

A statistic from the Department of Atmospheric Sciences, University of Illinois at Urbana-Champaign: “Approximately 80% of all evaporation is from the oceans, with the remaining 20% coming from inland water and vegetation.”